Opinion
CLAIM NO. F012509
OPINION FILED JULY 22, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE KENNETH A. OLSEN, Attorney at Law, Little Rock, Arkansas.
Respondents represented by HONORABLE GUY A. WADE, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an Administrative Law Judge's order and opinion filed September 27, 2002. The Administrative Law Judge found that the medical treatment pursued by the claimant since April 2001 was reasonably necessary. After reviewing the entire record de novo, the Full Commission reverses the opinion of the Administrative Law Judge.
I. HISTORY
The parties stipulated that the claimant, age 31, sustained a compensable injury on September 25, 2000. Dr. Steven L. Cathey wrote to Dr. Frank Ma on October 31, 2000:
Thanks for allowing me to see Mr. Wright today in consultation. As you well know, he presents with a several week history of fairly typical left sided sciatica that began after he slipped and fell off of a stool while working at Falcon Jet. The pain has thus far been refractory to appropriate trials of medication including a short course of physical therapy. He denies any previous history of back pain or injuries. . . .
A MRI scan of the lumbar spine has confirmed the presence of a disc herniation at L4-L5 on the left. There appears to be an extruded fragment in the foramen laterally. This fits nicely with his clinical presentation.
Frank, although I have offered Mr. Wright a lumbar laminectomy and diskectomy, he would like to give this problem a little more time and try some additional physical therapy. . . . Although we discussed the role of epidural steroids and "pain management," I am growing increasingly disappointed with the results of this particular type of treatment. . . .
On November 21, 2000, Dr. Cathey referred the claimant to Dr. Sunder Krishnan for an epidural steroid injection. However,
Dr. Cathey ultimately performed an "L4-L5 laminectomy and diskectomy, left" on December 12, 2000. The claimant followed up with Dr. Cathey on January 22, 2001:
Unfortunately, he doesn't seem to be doing any better. Indeed, he says he has more lower back and left leg pain now than he did prior to surgery. This, despite the fact that he clearly had an extruded disc fragment beneath the L5 nerve root on the left at the time of the procedure. . . .
I am certainly disappointed with Mr. Wright's lack of progress since the procedure, although perhaps with time he will get better.
The claimant followed up with Dr. Cathey on February 20, 2001 and continued to report no improvement. Dr. Cathey arranged an MRI of the lumbar spine, and he noted on March 19, 2001:
Today's MRI scan shows epidural fibrosis at L4-L5 on the left. There is no sign of recurrent or retained disc fragments. Indeed, there has been a dramatic improvement when today's MRI scan is compared to his preoperative study.
ASSESSMENT: Based on today's MRI scan, I am satisfied that we have now ruled out any indication for additional spinal surgery or other neurosurgical intervention. The patient and his wife, however, are not convinced. He tells me that his father had a similar problem and it was only after a myelogram was performed that a recurrent disc herniation was identified. . . .
Although I believe the yield for a CT myelogram to be exceedingly low, I am going to go ahead with the procedure tomorrow if for nothing else so that Mr. Wright will be satisfied that he has had an appropriate and thorough workup. If, as expected, the study does not show an indication for additional spinal surgery, I plan to release him to return to work at regular duty next week.
A lumbar spine myelogram was taken on March 20, 2001, with the following impression:
No central spinal stenosis or nerve root compression suspected. Minimal asymmetric decreased filling of the left L5 nerve root sleeve. CT images will be obtained for further evaluation.
And the following impression resulted from a lumbar spine, post myelogram on March 20, 2001:
1. Postoperative changes at the L4-5 level. Minimal diffuse soft tissue density is noted anteriorly at this level which may represent minimal disk bulge and/or scar tissue. No central spinal stenosis or definite nerve root compression is identified.
2. Probable minimal diffuse disk bulge at the L5-S1 level which results in no central or neural foraminal stenosis.
Dr. Cathey wrote to Dr. Ma on March 20, 2001:
Frank, I am satisfied that the patient's disc herniation at L4-L5 on the left has been satisfactorily addressed from a surgical standpoint. Now that he is over three months out from the procedure, I believe he has reached maximal medical improvement. Unfortunately, I really don't know what else to offer Mr. Wright in terms of treatment. It is certainly not appropriate for him to continue to use narcotic analgesics for what is clearly a benign process. Moreover, he didn't seem to respond favorably to epidural steroids initially, and I am not enthusiastic that any additional "pain management" is going to be of any benefit. The patient would like to get a second opinion from Dr. Ted Saer. I certainly have no problem with this, although I really do not see an indication for additional spinal surgery. Indeed, I would be the first one to advocate additional surgery if I believed that would improve Mr. Wright's left hip and leg pain.
As far as his workers compensation claim is concerned, I believe he has now reached maximal medical benefit. According to AMA Guidelines, he is entitled to a 10% permanent partial impairment rating to the whole person. I am going to go ahead and release him to return to work at regular duty on March 26, 2001. As always, I stand ready to reevaluate Mr. Wright, if I can be of additional service to him.
The respondents paid the 10% physical impairment rating. The claimant testified that he returned to work at full duty, but that he had experienced no relief from pain.
The claimant resumed treating with Dr. Krishnan on May 3, 2001. The claimant testified that Dr. Cathey referred him to Dr. Krishnan. Although Dr. Krishnan's records do not expressly corroborate the claimant's testimony, Dr. Krishnan did copy his correspondence to Dr. Cathey. Dr. Krishnan referred the claimant to another pain consultant, Dr. Thomas M. Hart, who stated on July 6, 2001 that "the gold standard would be discography, once and for all to help delineate whether or not he has subjective as well as objective reproduction of his concordant back pain complaints." Dr. Hart copied his July 6, 2001 report to Dr. Cathey.
Dr. Hart noted on July 25, 2001:
[H]e was seen and cleared by anesthesia and presents today for provocative discography at 3-4, 4-5, and 5-S1 levels. . . .IMPRESSION:
1. Initial on the job injury with continued back pain complaints, clearly demonstrated today, again according to standards that he has discogenic back pain at 4-5, no apparent leak was identified.
Dr. Hart opined that the claimant was "an appropriate candidate to go ahead and have percutaneous diskectomy." The claimant testified that the percutaneous diskectomy "hurt" and did not alleviate his pain.
Dr. Hart referred the claimant to Dr. Reza Shahim. Dr. Shahim, a neurological surgeon, stated on November 20, 2001:
I reviewed his MRI and he has significant disc disease at L4-5 only. The remainder of the discs are normal. He has a disc bulge at this level. . . .
I believe Mr. Wright's symptoms are mainly from mechanical instability at L4-5. He has had a work related injury resulting in this. He has failed conservative therapy now and minimal invasive procedures without any improvement. . . .
Since this was a work related injury he will attempt to contact his workers' compensation case manager and we will plan on proceeding with the posterior lumbar interbody fusion at L4-5 in a month from now.
On March 6, 2002, Dr. Shahim performed a "Posterior lumbar interbody fusion at L4-5, re-do discectomy at L4-5, interbody fusion using an interbody bone dowel, posterior segmental instrumentation at L4 and L5 using Stryker pedicle screw fixation, posterior lateral arthrodesis and fusion using local autologous bone graft." Dr. Shahim reported that discography had shown "collapse of the disc space" at L4-5.
The claimant testified that he had received no benefit from Dr. Shahim's surgery. Mr. Wright claimed entitlement to additional worker's compensation. The claimant contended that he was entitled to additional medical treatment. The claimant contended that he was entitled to temporary total disability compensation from March 6, 2002 until a date to be determined.
The respondents contended that they had provided reasonably necessary medical treatment, and that Dr. Cathey was the "authorized physician." The respondents contended that the claimant was not entitled to additional benefits.
Hearing was held before the Commission on August 22, 2002. The claimant testified that there had been no relief of his back symptoms. The respondents incorrectly assert that the claimant testified to a "miraculous recovery." On the contrary, the claimant merely testified that he had no leg pain on that day, because of a recent injection he had received from Dr. Krishnan.
The Administrative Law Judge found that the claimant proved he was entitled to the medical treatment from Dr. Shahim and Dr. Hart. The Administrative Law Judge awarded temporary total disability compensation from March 6, 2002 through August 25, 2002. The respondents appeal to the Full Commission.
II. ADJUDICATION
A. Medical Treatment
Ark. Code Ann. § 11-9-508(a) states that an employer shall promptly provide for an injured employee such medical treatment as may be reasonably necessary in connection with the injury received by the employee. The claimant bears the burden of proving by a preponderance of the evidence that he is entitled to medical treatment. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). The respondent-employer is liable for only that medical treatment that is reasonably necessary. GEO Specialty Chemical v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). What constitutes reasonably necessary medical treatment is a question of fact for the Commission. Ark. Dept. of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994).
In the present matter, the Full Commission reverses the Administrative Law Judge's finding that the claimant proved that the medical treatment he sought beginning in April 2001 was reasonably necessary. The Full Commission finds that the treatment provided after 2001, specifically the treatment from Dr. Krishnan, Dr. Hart, and Dr. Shahim, was not reasonably necessary in connection with the claimant's compensable injury. The Commission places significant weight on the findings of Dr. Cathey, the original treating surgeon. Dr. Cathey opined early on that he had become increasingly dissatisfied with the type of "pain management" provided by specialists such as Dr. Krishnan and Dr. Hart. Dr. Cathey eventually performed an L4-L5 laminectomy and diskectomy in December 2000, but the claimant reported no relief of his back pain. Nevertheless, Dr. Cathey reviewed an MRI in March 2001 which showed a dramatic improvement in the condition of the claimant's lumbar spine.
Dr. Cathey could find no indication for additional surgery to the claimant's spine, and he notified Dr. Ma that the claimant's disc herniation had been satisfactorily addressed. Dr. Cathey assigned an impairment rating and returned the claimant to regular duty. Dr. Cathey also pronounced maximum medical improvement.
The parties focus at length on whether or not Dr. Cathey referred the claimant back to Dr. Krishnan after Dr. Cathey released the claimant in March 2001. The respondents do not expressly contend that the claimant received "unauthorized" medical treatment pursuant to the change of physician statute, Ark. Code Ann. § 11-9-514. Rather, the respondents' contention that Dr. Cathey did not refer the claimant to Dr. Krishnan appears to constitute an argument that the claimant was not a credible witness. The parties deposed Dr. Cathey in August 2002. Dr. Cathey agreed that he had initially referred the claimant to Dr. Krishnan for pain management. Dr. Cathey testified that he did not refer the claimant back to Dr. Krishan after he released the claimant following surgery. The claimant introduced correspondence written in April 2001 from a Brandi Stricklin, which indicated that an appointment with Dr. Krishan had been scheduled for the claimant. We note that this correspondence was written on plain paper, with no letterhead representing Dr. Cathey. The claimant's attorney questioned Dr. Cathey regarding this letter:
Q. Did she have independent authority to make referrals of your clients or patients to other physicians?
A. Ha, well, that's a long story. Brandi did a lot of things we didn't know she was doing and that's why she was terminated.
Q. Okay. Would you take a look at what I'm handing you and describe what that is?
A. This is a letter to Mr. Wright indicating a referral to Dr. Krishan for consultation on Friday, April the 13th.
Q. Is it your testimony earlier that you did not make that referral?
A. I don't recall making that referral. It's certainly possible that we did, I just don't have any independent recollection of that.
The record does not clearly indicate for the Commission whether or not Dr. Cathey referred the claimant back to Dr. Krishnan following Dr. Cathey's release of the claimant. Whether or not Dr. Cathey referred the claimant back to Dr. Krishnan is irrelevant in the present matter with regard to whether the claimant's treatment after April 2001 was reasonably necessary. Even if Dr. Cathey had referred the claimant to Dr. Krishnan, Dr. Cathey clearly was unaware that the claimant had subsequently been referred to another neurosurgeon, Dr. Shahim. We note that the respondents had provided all of the medical treatment provided by Dr. Cathey, and that Dr. Cathey left the door open for the claimant to return after his release, but the claimant chose not to return to his treating surgeon, Dr. Cathey.
Further, Dr. Cathey credibly testified at deposition that the additional surgery performed by Dr. Shahim was not reasonably necessary:
Q. Dr. Shaheen (sic) then recommends or at least evaluates the same studies that you are looking at, the MRI, and he talks about significant disc disease at L4-5, and that there was a bulge at that level. Did you recognize a bulge at L4-L5 when you reviewed that same MRI?
A. Most discs by the very nature of their anatomy will have a bulge to their makeup, but let me just say again, I did not see any significant disc bulge or significant herniation or any nerve root impingement on any of the imaging studies that he had done subsequent to my surgery, so I would definitely say that — I would dispute that perhaps there was a minor bulge there, but no more so than the normal anatomy of a disc would allow for.
Q. Now, under the section on page 35 entitled "Decision Making" it says, "I believe Mr. Wright's symptoms are mainly from mechanical instability at L4-L5"?
A. Yes.
Q. Did you note any instability at that particular level at any time when you evaluated Mr. Wright?
A. No. . . .
Q. He then proceeds by indicating that a lumbar fusion is what he is considering. Did you have any basis for recommending or even considering a lumbar fusion on this particular patient at the time of your last evaluation?
A. No.
Q. Would you disagree with the findings of the, or at least the interpretation of Dr. Shaheen, Dr. Hart, and Dr. Krishnan, with regard to any additional bulge or problems at that disc level?
A. I would disagree, yes.
Based on our de novo review of the entire record, we find that the claimant failed to prove that the additional medical treatment he received after being released by Dr. Cathey was reasonably necessary in connection with the claimant's compensable injury. We specifically find that the claimant failed to prove he was entitled to additional medical treatment from Dr. Krishan, Dr. Hart, and Dr. Shahim in April 2001 and following. The Full Commission therefore reverses the Administrative Law Judge's finding that the claimant's medical treatment after April 2001 was reasonably necessary. The record indicates that the claimant reached the end of his healing period for his compensable injury no later than March 20, 2001. Since the surgery provided by Dr. Shahim on March 6, 2002 was not reasonably necessary, the claimant failed to prove that he entered another healing period from his compensable injury as a result of Dr. Shahim's surgery. The Full Commission therefore reverses the Administrative Law Judge's finding that the claimant proved he was entitled to temporary total disability compensation from March 6, 2002 through August 25, 2002. This claim is respectfully denied and dismissed.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
I must respectfully dissent from the majority opinion, which reverses the decision of the Administrative Law Judge that the claimant is entitled to additional reasonably necessary medical treatment for his compensable injury, as well as temporary total disability benefits from March 6, 2002 through August 25, 2002.
I. Additional Reasonably Necessary Medical Treatment
The respondents accepted claimant's treatment from Dr. Cathey through April 6, 2001, as well as claimant's treatment in November 2000 with Dr. Krishnan. The respondents have controverted claimant's entitlement to any treatment received from Dr. Krishnan subsequent to November 2000, as well as all treatment received from Drs. Hart and Shahim.
For the reasons stated below, I must respectfully disagree with the conclusion of the majority that the claimant's treatment from Drs. Krishnan, Hart, and Shahim was not reasonably necessary and thus not the liability of the respondents.
We have conflicting medical opinions in this case. Essentially, the majority has credited the medical opinion of Dr. Cathey over that of two of claimant's other treating physicians — Dr. Hart and Dr. Shahim. For the reasons stated below, I respectfully disagree with the majority's determination of the relative credibility of then medical opinions. Specifically, I find that Dr. Cathey's opinion is outweighed by the opinions of at least two other physicians whose opinions are in direct conflict with his opinion.
Dr. Cathey initially treated the claimant for his compensable injury on October 31, 2000. He initially attempted to treat the claimant conservatively with physical therapy and steroid injections. When conservative treatment did not work, he performed a laminectomy and diskectomy on December 13, 2000. The claimant reported no improvement after the surgery. Dr. Cathey performed a post-surgical MRI on March 19, 2001, and in the opinion of Dr. Cathey, the MRI did not reveal any reason for further surgical intervention. Hearing Transcript, page 14. Dr. Cathey also performed a CT myelogram at the request of claimant, the results of which he believed were consistent with the MRI results. Id., pages 18-19. On March 20, 2001, Dr. Cathey indicated that he had nothing further to offer the claimant, that he was not optimistic that the claimant would benefit from "pain management" treatment, and reiterated that he did not feel additional spinal surgery was indicated. Id.
Subsequently, the claimant visited Dr. Krishnan on May 3, 2001. Dr. Krishnan recommended that the claimant undergo nerve root blocks, and also prescribed Nortriptyline. Id., pages 21-22. Dr. Krishnan also referred the claimant to Dr. Thomas Hart, who stated in a letter to Dr. Krishnan on July 6, 2001 as follows:
On his presentation today, I had the opportunity to review his MRI, the T1 and T2 image as well as the CT myelogram. I believe at this time Mr. Wright does have a significant discogenic component to his back pain complaints and more than likely has a chemical irritation to the L5 nerve. Other than some slight, as you pointed out, patchiness to sensation, he also has some minimal weakness in the extensor hallicus longus on the left at L5. Overall, he is neurologically intact. Straight leg raising was somewhat positive at 60 degrees in the supine position. Also, in reviewing the axial images, it does show a continuing disc protrusion at L4-5 and some minimal scar tissue which definitely can cause chronic intractable leg pain complaints as well as his back pain.
I discussed with Mr. Wright that the gold standard would be discography, once and for all to help delineate whether or not he has subjective as well as objective reproduction of his concordant back pain complaints. He was receptive to the current plan.
I can understand his frustration with Workers Comp. Apparently, shortly after Dr. Cathey told him that he was not a surgical candidate, he was basically forced back to work, according to his history, in which he is "grinning and bearing it" on a regular basis in which he is working full time. If the discography does demonstrate an abnormal disc at the L4-5, then the question is what do we do about the disc. He obviously does not want to live with it. The last option would be consideration of a possible spinal fusion, in which he would like to see Ted Saer, MD, who has treated his father, which I think is an acceptable option. . . .
Joint Exhibit, page 24 (emphasis added). Dr. Hart reiterated his interpretation of the claimant's post-surgical MRI in his clinic note dated July 6, 2001:
So far, the MRI does demonstrate disc protrusion. I feel he has internal disc disruption, which can be easily documented with the medical literature.
Id., page 28 (emphasis added). After performing a discogram on July 25, 2001, Dr. Hart recommended that the claimant undergo a percutaneous diskectomy, and if it did not work, a fusion. Id., pp. 31-32. After the percutaneous diskectomy was unsuccessful in alleviating the claimant's pain, Dr. Hart referred the claimant to Dr. Shahim, a neurosurgeon. Dr. Shahim remarked as follows after his initial examination of claimant and review of his post-surgical MRI:
STUDIES REVIEWED: I reviewed his MRI and he has significant disc disease at L4-5 only. The remainder of the discs are normal. He has a disc bulge at this level.
DECISION MAKING: I believe Mr. Wright's symptoms are mainly from mechanical instability at L4-5. He has had a work related injury resulting in this. He has failed conservative therapy now and minimal invasive procedures without any improvement. I had an extensive discussion with him regarding posterior and lumbar interbody fusion and the risks and benefits.
Id., page 35. The claimant agreed to undergo the fusion procedure, and on March 6, 2002, Dr. Shahim performed a "fusion and re-do diskectomy" operation. His report of operation states both a pre-operative and a post-operative diagnosis of "mechanical instability and disc herniation and discogenic back pain at L4-L5." Id., page 43.
Dr. Cathey candidly acknowledged in his deposition that his interpretation of the post-surgical MRI, as well as opinion regarding further treatment for claimant, was in direct conflict with that of Drs. Hart and Shahim. He was first questioned in his deposition about the conflict between his interpretation of the claimant's post-surgical MRI and that of Drs. Hart and Shahim. He was asked about Dr. Hart's interpretation of the MRI as reflected in Dr. Hart's July 6, 2001 letter to Dr. Krishnan. Dr. Cathey testified in relevant part as follows:
Q: And then it goes on to say that overall he is neurologically intact, which is consistent with your finding, but shows a continuing disc protrusion at L4-5 and some minimal scar tissue?
A: Okay. Actually, what's he referring to I believe here — no, okay, yeah, you're right, he's referring to the MRI, and he says that there's a continuing disc protrusion, which I did not appreciate on my review.
Q: And you didn't find that at least when you closed at the time of your surgery in December of 2000, did you, Doctor?
A: Nor was it apparent on the MRI scan or the subsequent CT myelogram.
Deposition of Dr. Cathey, p. 27.
Q: Okay. Dr. Hart has a history and physical examination that apparently is in conjunction with that same letter dated July 6 of 2001, and it indicates that the MRI still showed a continued disc protrusion. Did you disagree with Dr. Hart's interpretation of the MRI?
A: Yes.
Q: He apparently refers to an axial view in image number ten, which he contends this protrusion is demonstrated on in his note which is page 27 of the joint medical exhibit in this case.
A: I didn't see anything there when I reviewed the MRI.
Id., pp. 29-30. Then, Dr. Cathey was asked about Dr. Shahim's interpretation of the MRI. He testified in relevant part as follows:
Q: . . . and then the patient was referred by Dr. Krishnan to Dr. Shaheen (sic). Are you familiar with Dr. Raza Shaheen?
A: I have met him, yes.
Q: Dr. Shaheen then recommends or at least evaluates the same studies that you are looking at, the MRI, and he talks about significant disc disease at L4-5, and that there was a bulge at that level. Did you recognize a bulge at L4-L5 when you reviewed that same MRI?
A: Most discs by the very nature of their anatomy will have a bulge to their makeup, but let me just say again, I did not see any significant disc bulge or significant herniation or any nerve root impingement on any of the imaging studies that he had had done subsequent to my surgery, so I would definitely say that — I wouldn't dispute that perhaps there was a minor bulge there, but no more so than the normal anatomy of a disc would allow for.
Q: Now, under the section on page 35 entitled "Decision Making" it says, "I believe Mr. Wright's symptoms are mainly from mechanical instability at L4-L5""?
A: Yes.
Q: Did you note any instability at that particular level at any time when you evaluated Mr. Wright?
A: No.
Q: Would you disagree with the findings of the, or at least the interpretation by Dr. Shaheen, Dr. Hart, and Dr. Krishnan, with regard to any additional bulge or problems at that disc level?
A: I would disagree, yes.
Id., pp. 32-33. Dr. Cathey testified that based upon his interpretation of the claimant's post-surgical MRI and CT myelogram, he did not believe any further surgical intervention was warranted, and thus that his medical opinion was in conflict with that of Drs. Hart and Shahim. Id.
To the extent that the majority concludes that claimant was not entitled to further medical treatment subsequent to Dr. Cathey's termination of treatment on March 20, 2001 because in Dr. Cathey's opinion, the post-surgical MRI indicated that no further surgical intervention was necessary, I note that two other doctors reviewed the same MRI scan and came to a conclusion directly opposite that of Dr. Cathey's conclusion. Therefore, without any other evident factors which would weigh in favor of crediting Dr. Cathey's opinion over that of Drs. Hart and Shahim, the opinion of Drs. Hart and Shahim should be credited if for no other reason than that they represent the consensus of opinion among the three doctors.
Furthermore, the claimant's testimony, which the Administrative Law Judge found credible, was that he received no relief whatsoever from Dr. Cathey's surgery. Therefore, to the extent that Dr. Cathey believed the claimant was "well" and did not need any further treatment subsequent to March 2001, the claimant's treatment history subsequent to that date, coupled with his credible hearing testimony, would indicate that Dr. Cathey was wrong.
The majority also points out that the claimant reported no significant relief as a result of any of his treatment subsequent to March 2001, save for the latest round of epidural steroid injections for his leg pain. However, the Full Commission has stated that the compensability or non-compensability of medical services is not dependent on a retrospective evaluation of the results obtained from the service. See Joyce Hager v. St. Edward Mercy Medical Center, Full Commission Opinion of July 25, 1990 (No. D408662). Case law has stated that the effectiveness of a surgery is a valid factor to be considered in determining whether the surgery was reasonably necessary, but is not conclusive. The Arkansas Court of Appeals first acknowledged this principle in the case of Winslow v. D B Mechanical Contractors, 69 Ark. App. 285, 13 S.W.3d 180 (2000). In that case, the court held that the Commission did not err when it considered the ineffectiveness of the claimant's spinal fusion surgery in finding that the surgery was not reasonably necessary. The Court of Appeals found it significant in the Winslow case that only one physician recommended the surgery, and even that one physician did not believe the surgery would be effective when he performed it. The facts of this case are quite distinguishable from those of the Winslow case. In the present case, we have two doctors who felt that further treatment for the claimant's injury was advisable, and only one who felt that it was not advisable. When weighed against the fact that two doctors advised further treatment including surgery and only one did not recommend any further treatment, the fact that the fusion surgery was subsequently ineffective in alleviating the claimant's pain should not be found to render the subsequent treatment not reasonably necessary.
II. Temporary Total Disability
The majority correctly states that the claimant, upon being released to return to work by Dr. Cathey in March 2001, worked continuously until the fusion surgery performed by Dr. Shahim in March 2002. Dr. Shahim took the claimant off work until August 26, 2002 to recuperate from the fusion surgery. Because the majority finds that the surgery was not reasonably necessary, it finds that the claimant is not entitled to temporary total disability benefits for this recuperative period. Since my review of the evidence indicates that the claimant's surgery was reasonably necessary, I would also award temporary total disability benefits for this recuperative period.
For these reasons, I respectfully dissent.
_______________________________ SHELBY W. TURNER, Commissioner